Antitrust Law Daily Wrap Up, PRIVACY—N.D. Cal.: Twitter’s bulk text messaging equipment fell within Telephone Consumer Protection Act, (Dec 1, 2014)

By Edward L. Puzzo, J.D.

Equipment used by Twitter to send bulk text messages from a list of recipients in a database qualified as an automatic telephone dialing system under the Telephone Consumer Protection Act, the federal district court in San Francisco has ruled (Nunes v. Twitter, Inc., November 26, 2014, Chhabria, V.).

Beverly Nunes filed a putative class action, alleging that Twitter had violated the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system (ATDS) to send text messages in bulk to cell phones such as hers without the consent of the recipients. Specifically, she alleged that once Twitter had obtained the consent of certain recipients to send messages to their cell phones, they failed to discontinue those messages once those cell phone numbers were transferred, or “recycled,” to new recipients. Twitter moved to dismiss, but the court denied Twitter’s motion.

As a threshold issue, the court explained that under Ninth Circuit precedent, text messages are “calls” within the meaning of the TCPA.

Calls generated from database. Twitter challenged whether the equipment it used to send text messages qualified as an ATDS under Section 227(a)(1). They argued that it was not enough that the equipment store numbers and dial them without human intervention; it must also generate random or sequential numbers. Twitter claimed its equipment used numbers from a database, and did not use generate random or sequential cell phone numbers.

The court stated that the Federal Communications Commission (FCC) has construed Section 227(a)(1) as referring to calling equipment that stores numbers regardless of whether they are random, sequential, or generated from calling lists or a database. Thus, Twitter’s objection was unavailing, the court ruled.

The court did acknowledge that not all courts have accepted the FCC’s interpretation and have questioned whether the FCC’s interpretation was unlawful. However, since Twitter did not challenge the lawfulness of the FCC’s interpretation, but merely stated that its situation was distinguishable, the court declined to consider the unlawfulness issue at this stage.

Configuration for random or sequential numbers. Nunes’ complaint also raised a secondary theory that Twitter’s equipment qualified as an ATDS, even without the FCC’s expanded definition regarding numbers from databases, because its dialing equipment was capable of being configured to generate random or sequential numbers. As an evidentiary matter, this issue could not be resolved at the pleading stage, the court stated. Thus, even if Twitter were correct that the FCC’s inclusion of equipment using a database were unlawful, this secondary theory would prevent the dismissal of the claim, the court ruled.

Prior recipient as called party. Citing Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012), the court rejected Twitter’s assertion that consent from a recipient who previously possessed the cell phone number, and not the new recipient, should be considered the “called party” from whom Twitter received consent under the TCPA.

The case is Civil Action No. 14-cv-02843-VC.

Attorneys: Jeffrey Farley Keller (Keller Grover LLP) for Beverly Nunes. David H. Kramer (Wilson Sonsini Goodrich & Rosati) for Twitter, Inc.

Companies: Twitter, Inc.

Cases: Privacy CaliforniaNews